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October 8, 2011

Connecticut prisoners expressing concerns over new prison porn ban

This lengthy new AP article, which is headlined "Connecticut prisoners express anger over porn ban," raises interesting issues at the intersection of prison policies and First Amendment freedoms. Here are the basics:

A group of prisoners has begun a letter-writing campaign to protest what they see as an unfair ban on pornography inside the state’s correctional institutions. The Department of Correction announced in July that it would be banning all material that contains "pictorial depictions of sexual activity or nudity" from the prisons beginning next summer.

The state says the ban is intended to improve the work environment for prison staffers, especially female staffers, who might be inadvertently exposed to pornography. "While it is not supposed to be displayed, it is still visible to staff, whether it be on the inside of a foot locker or underneath their bunks, so they are still exposed to it," said Correction Department spokesman Brian Garnett. "And secondarily, is the fact that this is contrary to our rehabilitative efforts, particularly when it comes to sex offenders."

The department has received about three dozen letters from inmates, many of them form letters, claiming the recently adopted ban violates the inmates’ First Amendment rights. Some of those letters also were sent to The Associated Press. They suggest either lifting the ban or providing inmates with alternatives such as "cable programming that offers and displays nudity, also sexual activity." The letters say the suggestions are being made to avoid litigation....

Bill Dunlap, a law professor at Quinnipiac University, said there is a constitutional argument to be made. But, he said the courts have generally sided with prison officials, as long as they can prove the ban has a legitimate goal other than to simply suppress material that some people might find objectionable — such as maintaining safety in the prisons, or keeping the material out of the hands of sex offenders....

Inmates were given a year to dispose of any pornography they might have, which will allow any current magazine subscriptions to run their course.... The total ban will take effect in July 2012. After that, material considered to be pornography will be taken as contraband and inmates found with it could face such punishments as a loss of commissary privileges, loss of phone or the loss of visits.

October 7, 2011

"A Judge’s Education, a Sentence at a Time"

The title of this post is the headline of this lengthy new article from the New York Times discussing part of former District Judge (and now Circuit Judge) Denny Chin's sentencing record. Judge Chin is best known, of course, for sentencing Bernie Madoff to the max, and this article is a must-read in part because it does not discuss the Madoff sentencing much at all. Here are just a few small excerpts from a nice piece that provides a number of interesting federal sentencing anecdotes:

Judge Chin, 57, who last year was elevated by President Obama to the United States Court of Appeals for the Second Circuit, in New York, after nearly 16 years on the trial bench, is best known for the 150-year sentence he gave Bernard L. Madoff, arguably the most prominent white-collar sentence in the history of American law....

But it has been largely anonymous defendants ... whose cases have influenced his thinking about how to balance punishment and rehabilitation, deterrence and compassion. “There’s no doubt that all of these cases shaped me,” Judge Chin said, “and shaped the way I think, and the way I respond to things.”

He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or the equivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: “Rule and roll.” Be decisive. Don’t second-guess yourself.

In a series of interviews conducted in person and through e-mail over the past year, Judge Chin discussed his most challenging sentencing decisions, cases that became essential parts of his education as a judge. The interviews were unusual; judges rarely agree to discuss cases, even closed ones, like these, outside court. The exchanges provided a revealing look at how one judge approached the task of sentencing, which he called “the hardest thing” about being on the bench.

“It is just not a natural or everyday thing to do,” Judge Chin explained, “to pass judgment on people, to send them to prison or not. I mean, there is so much at stake,” he added, “and there are so many different considerations that come into play.”...

Like most judges, Judge Chin faced defendants who promised to reform their ways. Some fulfilled that pledge; others let him down. He tried not to become jaded or cynical, he said, and retained hope that people who had made mistakes could turn their lives around.

“A good judge has to care,” he said. “He has to want to make the world better.” He also believed that rehabilitation, along with punishment, deterrence and healing victims, was a legitimate goal of sentencing. As he put it, “I don’t like to give up on people.”

Several Arkansas prisoners on death row challenged the state's Method of Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post facto clause and their due process right to access the courts. The district court dismissed the prisoners' claims, finding that their arguments were merely speculative, that they had access to Arkansas's current execution protocol, and that they could submit a FOIA request to obtain information on future protocols. In this consolidated appeal the prisoners argue that the district court erred in dismissing their ex post facto clause and due process claims. Appellant Williams also appeals individually contending that the district court erred in denying his habeas petition as second or successive and by refusing to exercise supplemental jurisdiction over a state law claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial of their motion to vacate the judgment. We affirm.

House Judiciary subcommittee to hold hearing on post-Booker realities next week

As detailed in this calender entry, next Wednesday morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system. The hearing has been given this telling title: "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."

Not yet listed are the scheduled witnesses for this hearing, but I assume that someone from the US Sentencing Commission (the Chair?) will be testifying. Usually these kinds of hearings include an invitation to some representative from the US Department of Justice, though that is less certain, especially given that the House Republicans get to run this show and they may want to spend much of their time beating up on DOJ.

Whomever ends up testifying, I am extremely pleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC. On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.

Though I doubt many members of the House Subcommittee share my perspectives on all federal sentencing issues issues, their eagerness to try to figure out what is really going on in the modern federal sentencing system merits praise and gets me excited. I eager to see what comes of this hearing, and will post more about it as more information becomes available.

October 6, 2011

"Feds target Calif. pot dispensaries for closure"

Federal prosecutors have launched a crackdown on pot dispensaries in California, warning the stores that they must shut down in 45 days or face criminal charges and confiscation of their property even if they are operating legally under the state's 15-year-old medical marijuana law.

In an escalation of the ongoing conflict between the U.S. government and the nation's burgeoning medical marijuana industry, at least 16 pot shops or their landlords received letters this week stating they are violating federal drug laws, even though medical marijuana is legal in California. The state's four U.S. attorneys were scheduled Friday to announce a broader coordinated crackdown.

Their offices refused Thursday to confirm the closure orders. The Associated Press obtained copies of the letters that a prosecutor sent to at least 12 San Diego dispensaries. They state that federal law "takes precedence over state law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana."

Over at TalkLeft, Jeralyn in this post right takes Obama and AG Holder to task for this latest pot prohibition move in the wake of their prior comments on this issue.

Getting it just right on Governor Perry's full criminal justice record

I am pleased to see that NPR put together this piece discussing Texas Governor Rick Perry's record on criminal justice issues beyond the death penalty. Here are excerpts:

As the longest-serving governor of Texas, Rick Perry has overseen the application of the death penalty more than any other U.S. governor — 236 executions, and counting. While Perry is unquestionably a steadfast supporter of capital punishment, his overall record on criminal justice is more complicated than that....

There are criminal justice reformers in Texas who insist that Perry is anything but a hang-'em-high governor. "I think Rick Perry is really getting a bum rap if and when he's being portrayed as some sort of bloodthirsty tyrant that just likes to kill people," says Jeff Blackburn, chief legal counsel for the Innocence Project of Texas, which works to overturn wrongful convictions.

"What we're accustomed to, frankly, is the governor's office being the primary obstructer of reform and progress, and that has not been the case with Rick Perry," he says. "He's done some real good, and I think more good than any other governor we've had."...

Criminal justice advocates won't go so far as to call Perry a reformer, and indeed, the governor has done little to exercise clemency in death penalty cases in which there are clear procedural flaws.

But to judge him solely on the 236 executions on his watch is unfair, says Scott Henson, who writes the respected criminal justice blog Grits for Breakfast. "Capital punishment is a media fetish," he says. "It's not really something that stands out as a remarkable part of Rick Perry's criminal justice record."

IMO, Perry has latched onto the death-penalty issue so vehemently because it's virtually the only item in his portfolio that crosses partisan lines to grab independents and conservative Democrats (since the death penalty is widely supported across all those demographics). Indeed, polls show that even those who believe the state has already executed an innocent person still support the death penalty by roughly a 60-40 margin. From a purely Machiavellian political standpoint, there's simply no downside for politicians in Texas (or in the GOP primary) from being seen as an eager executioner.

Indeed, arguably death-penalty demagoguery has played an important strategic role in Texas' criminal justice reforms, diverting media focus from more workaday criminal justice issues to an area where pols can look "tuff," even as they enact more moderate or even progressive reforms in other areas. Perry has signed legislation diverting tens of thousands of criminals from prison, but because of the "most-ever executions" tag, it'd be impossible in the political arena to successfully label him "soft on crime."

All that said, ... [c]riminal justice reform has never been a Perry priority, but as support for reforms grew among Texas Republicans, quite a few good bills passed on his watch and with a few notable exceptions he usually signed them. Governors in Texas wield relatively little power save for vetoes and appointments, so not vetoing things gets him credit, in my book, but it doesn't mean he'd make criminal-justice reform any sort of priority if he were President. Indeed, I seriously doubt he would do so.

Rick Perry doesn't deserve demonization for his criminal-justice record; he's not the one-dimensional, execution-crazed nutjob that death-penalty abolitionists have portrayed. But... [t]olerating reform is different from championing it.

State officials have set their sights on another potential pool of workers to help bridge Georgia’s severe farm labor gap: prisoners. The idea is to put nonviolent inmates -- who are spending the end of their prison terms at one of the state’s 13 transitional centers -- to work picking fruits and vegetables across Georgia.

This is at least the state’s second attempt to tackle the labor shortages since enacting a tough new immigration law many farmers blame for their problems. State officials started experimenting last summer by encouraging criminal probationers to work on the farms, but results are mixed.

State officials hope the nonviolent offenders would be motivated to learn new skills, earn money and eventually land steady jobs that would help them once they get out of prison. The prisoners would help fill open jobs in Georgia’s $68.8 billion agricultural industry, the state’s largest. And Farmers could become eligible for federal Work Opportunity tax credits by hiring the offenders once they finish their terms.

State Corrections Department officials confirmed the details of the latest plan Wednesday, calling it a joint effort between the agency, Gov. Nathan Deal and state agriculture and labor officials. They said the idea is still under development, and they have not set a start date.

The work would be voluntary for the prisoners. Pay would be set by farmers, though it would be at least minimum wage. Prisoners would pay for their transportation to and from the farms.... “Gov. Deal is interested in having an organized system to match a group that needs employment with employers who need labor,” Stephanie Mayfield, a spokeswoman for the governor, said. “It’s not a cure-all, but it allows two groups with fixable needs to help each other.”

A state survey of farmers released in June showed they had as many as 11,080 jobs open. On Tuesday, the agriculture industry released a separate report documenting $74.9 million in crop losses tied to farm labor shortages. Some farmers blame Georgia’s new immigration law, House Bill 87, that targets illegal immigrants and those who harbor them. They say the measure is scaring away the Hispanic migrant workers that farmers depend on, putting their crops at risk....

Charles Hall, executive director of the Georgia Fruit and Vegetable Growers Association, said putting prisoners to work on the farms “may be a partial solution.” “I don’t think we are opposed to it,” he said. “We just have got to see how well it will work.”

Deal, who signed HB 87 into law in May, reacted to the labor shortages by proposing putting probationers to work on the farms. Hall said some of the probationers who worked on two vegetable farms in Sumter and Colquitt counties during this summer’s pilot program quit because of the heat, long hours and physically taxing jobs they got.

Agriculture Commissioner Gary Black summarized more results from the pilot program Tuesday while testifying before a U.S. Senate Judiciary Committee’s Subcommittee on Immigration, Refugees and Boarder Security. One farmer who participated in that program found the probationers to be half as productive as his other workers, Black said in written testimony. Another farmer found only 15 to 20 reliable workers out of 104 probationers.

“There were some obvious challenges with using probation labor,” Black said, “and the two producers found that the probationers were unable to harvest at the same rate as the other workers. At the end of the day, both producers agreed that the program had potential to meet the niche needs for farmers desperate for workers.”

"Why isn’t Mr. Obama exercising his pardon power?"

The title of this post is a question that regular readers know I have been asking for years. It is also the headline of this Washington Post editorial, which includes these excerpts:

A report from the Justice Department’s Office of Inspector General rightly takes the Obama administration to task for moving at a snail’s pace to answer the pleas of thousands of inmates seeking clemency or pardon.

The report notes that significant delays occur at virtually every step of the pardon process... But the greatest share of the blame for the slow speed resides with the White House. Mr. Obama did not issue a single pardon for nearly the first two years of his presidency. Once Justice Department recommendations are forwarded to the White House, they languish an average of nine months before the president acts. The administration has recently made headway in reducing the backlog of cases — from 4,700 to 2,000 — but only because it denied thousands of petitions.

While more timely processing is needed, the real travesty involves the president’s miserly use of his pardon power. Pardon is often an inmate’s last best chance for justice. It is meant to correct wrongs left unaddressed by the courts or legislature, and should be used wisely but unsparingly to give a second chance to those who have been wrongly convicted or sentenced to disproportionately and unjustifiably long prison terms.

Mr. Obama need only look to the thousands of Americans — many of them young, African American men — incarcerated for inexcusably lengthy periods because of draconian crack cocaine laws. Mr. Obama joined with a bipartisan coalition in Congress to reduce the penalties and make them more proportional to the crime. Some inmates may benefit from a U.S. Sentencing Commission decision this summer that allows judges to resentence inmates under new guidelines reflecting the penalty reductions. But many nonviolent offenders worthy of relief will be out of luck because they were sentenced to mandatory minimum prison terms. This is exactly the kind of situation that cries out for presidential intervention.

I am so very pleased and proud to announce that the October 2011 issue of the Federal Sentencing Reporter is now complete and available on line. This is a special issues that was put together by the amazing folks at the Vera Institute of Justice, and here is how Vera describes the contents:

The October issue of the journal Federal Sentencing Reporter (FSR) examines the theme of “Sentencing Within Sentencing” — punishments defendants face in addition to those meted out by judges upon conviction. As Alison Shames, associate director of Vera’s Center on Sentencing and Corrections, writes in the “Editor’s Observations” column, “People involved in the criminal justice system are, in fact, punished at multiple points.”

The special Vera-edited issue presents new articles and reprints by staff, alumni, and associates that address a broad range of collateral penalties, including pretrial detention due to inability to afford bail, solitary confinement, and court fees and fines. The articles reflect Vera’s work since its founding 50 years ago, with a focus on the U.S. criminal justice, juvenile justice, and immigration systems.

You can read Alison Shames’s column and an article by Vera cofounder Herbert Sturzfree of charge online. Vera will publish related guest blog posts and additional articles from the new issue of FSR on the website in the coming weeks.

Read a blog post about this issue of FSR by Vera’s director, Michael Jacobson.

The Los Angeles Times has this effective new commentary by columnist George Skelton, headlined "Prison overcrowding and underfunding lead to more local burdens; Transfer of prisoners to local lockups was inevitable because voters want stiff sentences but won't pay for them." Here are excerpts:

"A lot of people say, 'Hey, what's new in Sacramento?'" Brown told a news conference last week. "Well, this is new. It's bold. It's difficult. And it will continuously change as we learn from experience. But we can't sit still and let the courts release 30,000 serious prisoners. We have to do something."

In truth, the change was inevitable. Either the state began to dump thousands of its lower-risk prisoners onto local custody or it would have been forced by federal courts to dump them on the streets....

Complainers — such as Mayor Antonio Villaraigosa — are being disingenuous, at best. Villaraigosa called a news conference Monday to denounce the state for not providing "a single dollar to help with the burden" of incarcerating and monitoring more criminals. "That is not alignment. That is political malpractice."

Not quite. The state is sending financial help to the counties, including $124 million to Los Angeles County. It's up to the cities to request a share. The mayor has privately told people that he won't "go begging" to county supervisors for money, according to one state official who requested anonymity because he was reporting a private conversation.

My favorite hyperbole, however, comes from Republican State Sen. Sharon Runner of the Antelope Valley: "Now is the time for Californians to get a dog, buy a gun and install an alarm system. The state of California is no longer going to protect you."

Let's be honest: The politicians and the voters simply could not continue their decades-long insistence on increasing criminal sentences and enlarging the prison population without raising the money to pay for more cells and guards....

Prisons originally designed for 80,000 inmates ballooned to 170,000. Thousands were stacked like cordwood in barracks, gyms and hallways, some triple-bunked. There was little room for exercise and rehab: education, job training and drug treatment. The recidivism rate rose to 70%, twice the national average.

Actually, it all started back when Brown was first governor in the 1970s. He signed a bill that switched California to determinate sentencing, mandating a fixed term for each crime. Before that, sentencing and release were more flexible, depending a lot on the inmate's behavior behind bars.

"Things didn't prove out the way we expected," then-Atty. Gen. Brown told me two years ago, when he was preparing to run for governor again. "If a prisoner knows he's going to spend a determined amount of time for a crime, it may create a deterrent. But then once in prison, there's no incentive to do work programs, to improve yourself, no incentive that you can get out earlier. That's bad. That's very bad… I think the whole prison system needs to be changed."...

When Brown was governor in 1978, the prison population was roughly 21,000. It accounted for less than 3% of state general fund spending. Currently, there are approximately 160,000 inmates — 140,000 within state prison walls; the rest incarcerated out of state, in camps or locally — and they're consuming more than 11% of the general fund, or almost $10 billion.

Costs have skyrocketed as politicians tried to outdo each other in stiffening sentences while voters cheered. "Three strikes" has been a particular money-burner. Meantime, polls showed that prison spending was the first thing voters wanted to cut and the last thing they were willing to pay more taxes for. A survey in May by the Public Policy Institute of California found that 70% of likely voters favored reducing funds for prisons. Only 18% supported raising taxes to maintain the lockups....

Former Gov. Arnold Schwarzenegger and the Legislature stumbled around on the issue for years. Finally, the U.S. Supreme Court in May ordered California to empty its prison cells of 30,000 inmates. With a court gun to their heads, Brown and Democratic legislators acted.

Their solution: Those who commit nonviolent, non-serious and non-sex-related crimes will be incarcerated in county jails instead of sent to state prisons. Such current inmates, when released by the state, will be supervised by county probation officials. Parole violators won't be sent to prison, they'll be jailed locally and for less time than previously. The hope is that there'll be more rehab opportunities locally than in the packed pens.

October 5, 2011

"Face the federal death penalty in Michigan? Let state's laws decide"

The title of this post is the headline of this commentary in the Detroit Free Press authored by Professor Michael Mannheimer. Here are excerpts:

The full U.S. Court of Appeals for the 6th Circuit is considering whether to review the federal death sentence imposed on Marvin Gabrion II in Michigan in 2002. Gabrion is purportedly eligible for the federal death penalty because he committed murder in a national forest. A three-judge panel recently threw out Gabrion's death sentence because the trial judge refused to allow the jury to consider the absence of capital punishment in Michigan as a mitigating factor.

Although the panel came to the correct result, it did not go far enough. Because Gabrion committed his crime within a state that does not authorize the death penalty, his federal death sentence violates the Eighth Amendment's ban on "cruel and unusual punishment."...

The federal Bill of Rights was adopted under the assumption that state law would provide the standard to give the bill's provisions meaning. This view demands that we take a state-centered and state-specific approach to the Bill of Rights. Indeed, the fiercest advocates of a federal Bill of Rights were those whom we would today call the "states' rights" crowd....

In its original incarnation, the doctrine of states' rights operated to provide an additional layer of protection between individuals and government by using state norms to determine the limits of federal power. And the key word of the cruel and unusual punishments clause -- "unusual" -- cries out for a comparison between the punishments prescribed by the new federal government and those meted out by the states, which, by 1791, had extensive experience in administering criminal justice in North America, some for nearly two centuries....

There is good reason to think that Marvin Gabrion II should be executed. But there is also good reason to reject capital punishment wholesale. Ultimately, the question is not one of crime and punishment, but of who decides. The cruel and unusual punishments clause leaves in the hands of the people of Michigan the question whether men such as Gabrion should live or die.

Though I am embellishing a bit with the title I picked for this post, this AP story about Justice Scalia's testimony to Congress today reveals that I am not the only Blakely fan who thinks the federal war on drugs has negative collateral consequences. The Ap story is headlined "Scalia: Judges 'ain't what they used to be'," and it begins this way:

Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

"Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee. The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

What are criminal justice and drug war views of Herman Cain, the new GOP front-runner?

I am intrigued that the GOP field now seems to have a new front-runner in Herman Cain, and this development now has me wondering about Cain's perspective on criminal justice issues and especially the big-federal-government "war on drugs."

I cannot find anything about any criminal justice issues on Cain's website. A quick internet search likewise turned up little; this Think Progress posting links to a video clip in which Cain says that states should be in charge of gun control, but only after he said he was a strong supporter of Second Amendment rights.

I am curious about Cain's criminal justice views in part because, unlike the career politicians who make up most of the rest GOP field, he has no record on this front and probably has not even given much thought to these matters. Also, the undeniable realities of racial skews in the populations most impacted by and most concerned by federal and state criminal justice policies — on issues ranging from crack sentencing to felon disenfranchisement to the death penalty — has me wondering about Cain's perspective on these hot-button matters of crime and punishment.

One of these things is not like the others: Heller, Graham, Kennedy and Booker

The title of this post is inspired by an interesting footnote in the interesting dissent by Judge Kavanaugh in the interesting DC Circuit Second Amendment ruling yesterday (first blogged here). As readers of any TV generation should know, I am making reference to a classic Sesame Street segment (if you want hum along, go here or here) as a way to set up this interesting insight and discussion from Judge Kavanaugh in footnote 3 near the start of his lengthy dissent:

Heller was similar in its overarching practical and real-world ramifications to recent Supreme Court decisions such as Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011); Graham v. Florida, 130 S. Ct. 2011 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); and Romer v. Evans, 517 U.S. 620 (1996). Those decisions disapproved novel or uncommon state legislative efforts to regulate beyond traditional boundaries in areas that affected enumerated individual constitutional rights — California’s law banning sale of violent video games, Florida’s law permitting life without parole for certain juvenile crimes, Louisiana’s law permitting the death penalty for certain rapes, and Colorado’s law prohibiting gay people from receiving protection from discrimination. Because those laws were outliers, the decisions invalidating them did not cause major repercussions throughout the Nation. Heller was a decision in that same vein, in terms of its immediate practical effects in the United States. By contrast, of course, some Supreme Court decisions interpreting the Constitution’s individual rights provisions not only are significant jurisprudentially but also have substantial practical impacts on common federal or state practices. See, e.g., Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Arizona v. Gant, 556 U.S. 332 (2009); United States v. Booker, 543 U.S. 220 (2005). Heller was not a decision of that kind.

As a descriptive matter, Judge Kavanaugh is spot on in noting that many of the most high-profile modern SCOTUS constitutional rulings involved invalidation of a "novel or uncommon" and "outlier" piece of state legislation, while a few others upset more common criminal justice practices. (Thus, the first answer to the Sesame Street question posed above is Booker, which Judge Kavanaugh rights asserts was more disruptive of traditional and common practices than Heller or Graham or Kennedy.) Critically, though, Judge Kavanaugh goes on to develop a jurisdictional approach to the Second Amendment based in the idea that the novelty or outlier status of any gun regulation makes it constitutionally suspect. I am tempted to call this a Sesame Street approach to the Second Amendment: if a particular jurisdiction's gun regulation is not like a lot of others, then it is (presumptively?) unconstitutional.

Of course, it make plenty of textual sense to assert that a novel or uncommon punishment is constitutionally suspect given the Eighth Amendment's prohibition on "cruel and unusual punishments." But it is hard to see just where and how a presumption against novel gun regulation finds expression in the text of the Second Amendment's prohibition on infringements of the right to keep and bear arms. Moreover, there is a competing constitutional tradition (based in federalism and the decentralization of power) to praise and protect efforts by individual states to try a unique approach to regulation in order to foster a laboratory for legislative innovation.

That all said, I find myself somewhat drawn to this Sesame Street approach to the Second Amendment, in large part because of its super-majoritarian quality and practical convenience. However, I suspect others may see more virtues than vices in Judge Kavanaugh's jurisprudential approach. Gosh knows this approach has proved controversial in the Eighth Amendment context, and there is has considerably more textual support than in the Second Amendment setting.

Interesting battle over guidelines and "gain" in Rajaratnam pre-sentencing hearing

This new New York Law Journal piece, headlined "Financial Gain Hotly Disputed in Galleon Presentence Hearing," provides a great review of some pre-sentencing sparring taking place in the run-up to a high-profile white-collar sentencing schedued for next week. Here are some excerpts:

Prosecutors and defense lawyers were miles apart yesterday as they argued how much financial gain should be attributed to Raj Rajaratnam when Southern District Judge Richard Holwell sends him to prison in the Galleon Group hedge fund scandal.

Special Assistant U.S. Attorney Andrew Z. Michaelson told Judge Holwell that Mr. Rajaratnam was guilty of "serial insider trading" that produced illicit gains of $72 million. That number, if accepted by the judge along with sentencing enhancements for taking a leadership role and obstructing justice, would mean a guidelines sentencing range of 19½ to 24½ years in prison.

But defense lawyer Terence J. Lynam of Akin Gump Strauss Hauer & Feld, one of a half dozen attorneys from Akin Gump who sat with Mr. Rajaratnam, said the government's number vastly exaggerated the alleged profits made by Mr. Rajaratnam and failed to acknowledge the movements in stock prices that were due to market forces or other events....

Yesterday, Mr. Rajaratnam, 54, watched impassively with Akin Gump's John M. Dowd by his side as Mr. Lynam argued against the government's math and the leadership-role enhancement, and co-counsel Samidh Guha argued Mr. Rajaratnam should not be penalized further for allegedly obstructing a probe into insider trading by the Securities and Exchange Commission.

Assistant U.S. Attorney Reed M. Brodsky, who prosecuted the case along with Mr. Michaelson and Jonathan M. Streeter, argued for both enhancements as he called Mr. Rajaratnam "by far and away the clear leader in organizing" a series of "interlocking conspiracies," in which he learned about earnings announcements and corporate transactions and then made millions from the stolen information....

But the bulk of the argument yesterday focused on the amount of the gain, as Mr. Michaelson told the judge that roughly $30 million of the $72 million in gains were racked up through trading ahead of mergers and acquisitions, and another $30 million trading ahead of earnings announcements for entities such as Google and Goldman Sachs. About $10 million came in the form of trading to avoid losses and the remainder came from trades the defense argues cannot be attributed to Mr. Rajaratnam.

Mr. Michaelson was challenged by Mr. Lynam on whether the government's method of calculating gains "sweeps up" other factors affecting stock prices. Mr. Lynam argued that the government should be forced to "back out" the other factors affecting pricing, but Mr. Michaelson said there were no "significant intervening" events that drove the stocks at issue either higher or lower after Mr. Rajaratnam had already placed his bets and the announcement of a merger earnings was made....

Mr. Rajaratnam's defense team is also seeking a break from Judge Holwell because of their client's poor health, but they have yet to publicly reveal his condition and documents relating to the issue remain under seal.

The title of this post is the title of this provocative new paper by Professor Samuel Gross, which is now available via SSRN. Here is the abstract:

A criminal defendant in the United States faces a stark choice: accept the conviction and punishment the prosecutor offers as a plea bargain, or go to trial and risk much worse. In most cases the defendant has an overwhelming incentive to plead guilty; that’s why very few criminal cases go to trial. Unfortunately that incentive is similar for defendants who are in fact guilty and for those who are not. As a result, some innocent defendants plead guilty. We know it happens — some innocent defendants who plead guilty are later proven innocent and exonerated — but we have no idea how often.

In this article I consider an alternative structure. We could offer defendants a different sort of pretrial option: not to plead guilty in return for reduced punishment, but to waive major procedural rights at trial in return for important procedural advantages on post-conviction review if they are convicted. In theory, this pretrial choice should be sufficiently more attractive to innocent defendants than to guilty ones that it will separate the two groups more effectively than our current practice. Along the way, if this option became regular practice, it might also reduce our reliance on plea bargaining, regain some lost ground for criminal trials, and improve the accuracy of fact finding in criminal cases.

Is this plan is practical? Is there a chance that it might be adopted somewhere? I wonder. I offer it as a thought experiment: an attempt to think through an alternative procedural universe in order to better understand the one we live in — which might lead to something useful.

October 4, 2011

Examining California's new prison placement law (and its possible impact on the King of Pop's doc)

I have not been closely following the on-going trial of Conrad Murray, the doctor charged with being criminally responsible for causing Michael Jackson's premature demise. I am intrigued and pleased to discover, however, that this new AP story finds a way to link that trial and Murray's potential sentencing to the new laws in California enacted in part to help the state comply with the Plata SCOTUS ruling concerning the state's overcrowded prisons. Here is how the lengthy new AP piece starts:

Gov. Jerry Brown and others who supported the dramatic shift in California's sentencing law that took effect this week have said it will send only those convicted of nonviolent or non-serious crimes to county jails instead of state prison, a change designed to save the state money and reduce inmate crowding.

Yet a review by The Associated Press of crimes that qualify for local sentences shows at least two dozen offenses shifting to local control that can be considered serious or violent. Among them: Involuntary manslaughter, vehicular manslaughter while intoxicated, killing or injuring a police officer while resisting arrest, participating in a lynching, possession of weapons of mass destruction, possessing explosives, threatening a witness or juror, and using arson or explosives to terrorize a health facility or church. Assault, battery, statutory rape and sexual exploitation by doctors or psychotherapists are also covered by the prison realignment law and carry sentences that will be served in a county jail instead of state prison.

"These crimes include a variety of offenses that would strike many civilians as far from trivial," Public Policy Institute of California researcher Dean Misczynski wrote in a recent analysis of the new law [available at this link]. A list of 500 criminal code sections to be covered by the law was compiled by the California District Attorneys Association and posted late last month to its website [at this link]. In response to a request by the AP, the state attorney general's office confirmed the association's review was accurate but said defendants with a previous felony conviction or those charged with enhancements would still be sent to state prison.

Among those who could be affected by the new law if convicted is Dr. Conrad Murray, who is on trial for involuntary manslaughter in the death of Michael Jackson. Legal experts said he would serve his maximum four-year sentence in a Los Angeles County jail instead of state prison.

The length of sentences won't necessarily change, but the realignment law does offer significant differences for inmates. Parole will disappear for offenders who serve their terms in county jails, including Murray, if he is convicted. Offenders who serve their full sentences behind bars will not be supervised once they are released. Parole officers will not be tracking their movements or making sure they comply with conditions such as substance abuse treatment.

Judges also have the discretion to impose "hybrid" or "split sentences" in which offenders serve part of their sentence in county jail and the rest on what is being called "mandatory supervision," overseen by probation officers.

Offenders convicted of more significant crimes still are likely to get lengthier sentences, even if they are served in jail instead of prison, said Scott Thorpe, chief executive officer of the state district attorneys association. But sentencing more serious offenders to jail rather than state prison will likely force counties that already have crowded jails to release less serious offenders who are serving time for crimes such as auto theft, burglary, grand theft, forgery, counterfeiting and drug crimes.

Los Angeles County District Attorney Steve Cooley is among those complaining that counties will be forced to release lower-level offenders by the thousands before they have served their full terms.

Next murderer scheduled for execution in Georgia gets stay for DNA testing

As detailed in this new Reuters article, a state judge in Georgia today "issued a stay of execution for a convicted killer whose attorneys seek a new trial and additional DNA testing." Here is more:

Marcus Ray Johnson, 46, was scheduled to be put to death by lethal injection on Wednesday for the rape and murder of Angela Sizemore in Albany, Georgia in March 1994.

But Dougherty County Superior Court Chief Judge W.E. Lockette delayed the execution and set a hearing for February to determine the merits of Johnson's request for more DNA testing. Johnson's attorneys say the evidence that should be tested includes blood, saliva, hair, clothing and fingernail clippings.

Prosecutors said in court filings that Johnson's contentions had already been rejected by state and federal courts. The state said, at best, the DNA test results would prove Johnson was still guilty as a party to the crimes.

New ACS issue brief on "right to counsel" cases this SCOTUS term

The ‘Right-to-Counsel Term’: The Supreme Court has agreed to hear several cases this term that have the potential to “shape the Sixth Amendment right to counsel and related claims in such a way that recognizes the realities of our 21st century criminal justice system,” write The Constitution Project's Mary Schmid Mergler and Christopher Durocher in their ACS Issue Brief. In a comprehensive preview of the cases, the authors explain how plea negotiations, post-conviction proceedings, and other aspects of the modern criminal justice process have fallen through the right-to-counsel cracks.

Eleventh Circuit now to review en banc FSA pipeline sentencing issue

Regular readers may recall this post and this post from this past summer discussing the important Eleventh Circuit panel ruling in US v. Rojas declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter." Today, the Eleventh Circuit released this new order in Rojas indicating that this issue is now going to be examined by the full Eleventh Circuit en banc.

I am disappointed (but not all that surprised) that the full Eleventh Circuit does not have better things to do than to re-review the application of the FSA's new, more fair mandatory minimum terms to a few more federal defendants. After all, since the Rojas ruling, both the Attorney General (as detailed here) and the Third Circuit (in Dixondiscussed here) have concluded that the Rojas panel got the law right.

Moreover, and more importantly, the Rojas panel ruling does not require that district judges give lower sentences to the most aggravated crack offenses, rather it simply allows district judges to consider lower sentences for the most mitigated crack offenses. But, apparently a majority of judges on the Eleventh Circuit are so fearful of even giving a few more federal defendants even the chance to argue at sentencing for the lower sentences that Congress has now deemed more fair that they have to turn this into a big en banc battle. (I wonder how much in federal tax dollars are going to be wasted on the federal criminal justice debate over this narrow issue of when exactly crack sentencing is supposed to become fair as Congress has commanded. Yeesh.)

In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one’s home violated the Second Amendment right of individuals to keep and bear arms. See District of Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, which amended the Firearms Control Regulations Act of 1975, D.C. Law 1-85. The plaintiffs in the present case challenge, both facially and as applied to them, the provisions of the District’s gun laws, new and old, requiring the registration of firearms and prohibiting both the registration of “assault weapons” and the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiffs argue those provisions (1) are not within the District’s congressionally delegated legislative authority or, if they are, then they (2) violate the Second Amendment.

The district court granted summary judgment for the District and the plaintiffs appealed. We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.

Here is part of the start of the very lengthy dissent by Judge Kavanaugh:

In this case, we are called upon to assess those provisions of D.C.’s law under Heller. In so doing, we are of course aware of the longstanding problem of gun violence in the District of Columbia. In part for that reason, Heller has engendered substantial controversy. See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253 (2009); Richard A. Posner, In Defense of Looseness, THE NEW REPUBLIC, Aug. 27, 2008, at 32. As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.

In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.

SCOTUS hearing three criminal procedure cases today

Lots of criminal procedure on the docket for the Supreme Court on this the first Tuesday in October. Via SCOTUSblog, here are the basics:

10-63 Maples v. Thomas: Whether the Eleventh Circuit properly held that there was no cause to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

10-680 Howes v. Fields: Whether this Court's clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

10-1001 Martinez v. Ryan: Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.

The Maples case seems likely to generate the most media attention, in large part because it is a capital case. But I think the Martinez case is the most important and potentially the most consequential of this trio.

UPDATE: The folks at SCOTUSblog now provide links to all the oral argument transcripts in these three cases via this new post.

Big new report assails juvenile incarceration as ineffective

As detailed in this press release, a big new report from the Annie E. Casey Foundation concludes that incarcerating "juvenile offenders in correctional facilities, which costs states a yearly average of $88,000 per youth, is not paying off from a public safety, rehabilitation or cost perspective." Here is more about this report (available here), which is titled "No Place for Kids: The Case for Reducing Juvenile Incarceration," from the press release:

The report concludes that there is now overwhelming evidence that the wholesale incarceration of juvenile offenders is a failed strategy for combating youth crime because it:

• Does not reduce future offending by confined youth: Within three years of release, roughly three-quarters of youth are rearrested; up to 72 percent, depending on individual state measures, are convicted of a new offense.

• Does not enhance public safety: States which lowered juvenile confinement rates the most from 1997 to 2007 saw a greater decline in juvenile violent crime arrests than states which increased incarceration rates or reduced them more slowly.

• Wastes taxpayer dollars: Nationwide, states continue to spend the bulk of their juvenile justice budgets – $5 billion in 2008 – to confine and house young offenders in incarceration facilities despite evidence showing that alternative in-home or community-based programs can deliver equal or better results for a fraction of the cost.

• Exposes youth to violence and abuse: In nearly half of the states, persistent maltreatment has been documented since 2000 in at least one state-funded institution. One in eight confined youth reported being sexually abused by staff or other youth and 42 percent feared physical attack according to reports released in 2010.

The full 50-page report and a helpful four-page Issue Brief are available in pdf form here and here.

"Montana objects to federal gun ban for medical marijuana users"

Attorney General Steve Bullock voiced his objection Monday to the U.S. Justice Department over its recent memo banning the sale of guns or ammunition to licensed medical marijuana users and urged the agency not to prosecute anyone for now.

Bullock wrote U.S. Attorney General Eric Holder about the Sept. 21 memo from the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives to licensed gun dealers. The memo said it is illegal for medical marijuana cardholders to buy guns and ammunition, and illegal for dealers to sell these products to them.

The letter from Bullock followed criticism of the policy last week from all three members of Montana's congressional delegation, Sens. Jon Tester and Max Baucus, and Rep. Denny Rehberg. A firearms advocacy group and a medical marijuana group had earlier blasted the memo....

Bullock said the federal letter raises Second and Fifth amendment constitutional issues over the right to bear arms, equal protection and due process. In addition, he said, hunting is a constitutionally protected activity in Montana.

The Montana attorney general said he certainly recognizes the supremacy clause in the U.S. Constitution and the importance of maintaining a federal union, but added: "In our federal system of dual sovereignty, I respectfully suggest that the federal government should act in a careful manner when its laws and policies involve conflicts with those of the state."

Bullock conceded there had been abuses and problems with medical marijuana laws in various states, including Montana, but these states have sought to find workable solutions. "In doing so, however, we also face issues that are, candidly, created or exacerbated by federal actions and policies that do not always reflect the kind of careful approach and appropriate accommodation that should be accorded the state," said Bullock, a Democrat running for governor in 2012.

Medical marijuana industry officials have said that changing federal policies on the issue have created problems. Federal authorities raided more than two dozen Montana medical marijuana growing and dispensing operations earlier this year as the Legislature was considering medical marijuana bills.

Gary Marbut, president of the Montana Shooting Sports Association, called Bullock's letter to Holder "a good first step." He said he looks forward to seeing "actual deeds" by state elected officials in following up on the issue.

October 3, 2011

Might "female Hannibal Lecter" have a shot at parole in California?

The question in the title of this post is prompted by this new piece in the Los Angeles Times, which is headlined "Gruesome details recounted in case of ex-model who ate husband." Here are the specifics:

Gruesome details are expected to be recounted this week when a state parole board decides whether an ex-model who dismembered her husband then cooked and ate his body parts should be freed after nearly two decades behind bars.

At the time of the sensational Orange County case, detectives compared Omaima Nelson to the fictional cannibal killer Dr. Hannibal Lecter. She is seeking early release from California Central Women’s Prison, where she is serving 27 years to life for the second-degree murder of William E. Nelson.

Orange County Senior Deputy Dist. Atty. Randolph J. Pawloski is fighting her release, saying he will never forget the horror of visiting the couple's home. “There were suitcases and plastic bags soaked with dark liquid from his body parts. In the fry cooker there sat Mr. Nelson’s hands and when we opened the refrigerator there was Mr. Nelson’s head with stab wounds,” Palowski recalls. “She had his entrails in his Corvette and she was trying to get an ex-boyfriend to yank out the dentures from the head so she could dump it in the Back Bay.”

The memory of those details is why the veteran prosecutor who sent her to prison will take the rare step of personally appearing at a parole hearing in Chowchilla on Wednesday to oppose her request for early release. “It is certainly one of the most gruesome and notorious crimes ever committed in Orange County and sometime people need reminding of that,” he said. “It is probably the most egregious mutilation murder we’ve had here.”

The way she defiled and mutilated her husband, he will tell the parole board, demonstrates an exceptionally callous disregard for human life, he said. “Make no mistake -- she will tell you anything you wish to hear to get what she wants,” he said.

Jurors deliberated for six days before rejecting Nelson's defense that she was a battered woman who killed in self-defense after being repeatedly abused and raped the night before the killing. Because of a lack of premeditation they deemed it a second-degree murder.

In court, a psychiatrist testified that Nelson put on red shoes, a red hat and red lipstick before spending hours chopping up her husband's body. " 'I did his ribs just like in a restaurant,' " the psychiatrist quoted Nelson as saying. She revealed she sat at the kitchen table with her husband’s cooked remains and said out loud: " 'It's so sweet, it's so delicious .... I like mine tender,' " the doctor recalled.

For anyone who might worry that federal prosecutors may waste too much time and federal taxpayer monies pursuing local crimes that are best handled by local governments, I am pleased to be able to report on a new Justice Department press release that highlights that the feds do sometimes devote their limited time and precious federal taxpayer monies to pursuing big-time international criminals. Specifically, as detailed in this new DOJ press release titled "Virginia Man Pleads Guilty to Trafficking in Illegally-Imported Sperm Whale Teeth," we can all sleep sounder knowing that the feds keep working hard to keep us all safe from evil persons who illegally traffic in the pearly whites of huge marine mammals:

Richard M. Ertel, of Spotsylvania, Va., pleaded guilty today in U.S. District Court in Richmond, Va., to the illegal importation and illegal trafficking of sperm whale teeth, the Department of Justice announced.

Ertel pleaded guilty to two felony violations of the Lacey Act for trading in endangered marine mammal parts. Sperm whales are classified as “endangered” under the Endangered Species Act (ESA), and are listed on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. It is illegal to import parts of sperm whale teeth into the United States without the requisite permits and certifications, and without declaring the merchandise at the time of importation to U.S. Customs and the U.S. Fish and Wildlife Service.

Sperm whale teeth are commonly used for scrimshaw and can fetch large sums of money from collectors and tourists. Scrimshaw, as defined by the ESA, is any art form which involves the substantial etching or engraving of designs upon, or the substantial carving of figures, patterns or designs from, any bone or tooth of any whale, dolphin or porpoise.

As part of the plea, Ertel admitted that from April 2002 to June 2007, he was in the business of buying and selling sperm whale teeth that he purchased from sources in the Ukraine, and then sold to customers in Virginia and elsewhere in the United States. He admitted to conducting much of his business via the Internet.

As a result of the felony conviction, Ertel could be sentenced up to five years in prison and fined up to $250,000 for each count. Sentencing is scheduled for Jan. 9, 2012.

Gosh knows that, after getting this new DOJ press release via e-mail, I will be sleeping much sounder tonight. But I am now concerned that looming federal budget cuts might undermine the important progress obviously being made in the war on scrimshaw. I sure hope that the sperm whale community can and will be actively lobbying members of Congress to try to preserve and expand the law enforcement funds needed to ensure that this small population of large victims no longer has to live in fear.

"Italy appeals court clears Knox of murder"

The title of this post is the headline of this new AP story coming from Italy. Here are the basics:

An Italian appeals court has thrown out Amanda Knox's murder conviction and ordered the young American freed after nearly four years in prison for the death of her British roommate.

Knox collapsed in tears after the verdict was read out Monday. Her co-defendant, Raffaele Sollecito, also was cleared of killing 21-year-old Meredith Kercher in 2007.

The Kercher family looked on grimly as the verdict was read out by the judge after 11 hours of deliberations by the eight-member jury. Outside the courthouse, some of the hundreds of observers shouted "Shame, shame!"

For a host of reasons, I have mostly been disturbed by the extraordinary amount of media coverage that has been given to this Italian murder case. Nevertheless, for a host of reasons, I doubt this latest legal development is likely to lower the case's profile anytime soon. (Indeed, I am already speculating about how many forthcoming commentaries will have Amanda Knox and Troy Davis in the title.)

As always, I welcome reader comments on the Knox case itself, on any unique facets of the Italian criminal justice system, and also on what all the MSM attention tells us about our modern perspectives on American crime and punishment.

Sex offender standing before SCOTUS this morning in Reynolds

As explained in this helpful SCOTUSblog post, the Supreme Court is hearing arguments this morning in a sex offender case to kick of the start of its new Term, but what is at issue seems quite narrow and of limited long-term consequences. The case is Reynolds, and here are the essentials:

In Reynolds v. United States, the Court will consider a surprisingly narrow issue: standing. In particular, the case asks whether a sex offender who was convicted before SORNA’s enactment has standing to challenge the Attorney General’s rule that applies SORNA’s registration requirement to pre-enactment offenders.

SORNA requires every sex offender to register, and to keep the registration current, in each jurisdiction where the offender lives, works, or studies. It provides that a sex offender’s failure to register, or to keep registration current, itself constitutes a federal crime. Section 16913(d) delegates to the Attorney General the authority to say whether and how SORNA’s registration requirements apply to sex offenders who were convicted before SORNA’s enactment...

The petitioner in this case, Billy Joe Reynolds, was convicted of a sex crime in Missouri in 2001 and sentenced to imprisonment. Upon his release in 2005, he registered under Missouri law and subsequently updated and verified his registration as required by Missouri law.

In November 2007, Reynolds was charged and indicted with violating SORNA’s registration requirements after he moved to Pennsylvania without updating his registration. He moved to dismiss the indictment, arguing — among other things — that the Attorney General’s rule violated the APA. The district court denied the motion, and Reynolds entered a conditional plea, reserving the right to appeal the denial of his motion to dismiss. The Third Circuit affirmed, ruling that SORNA’s registration requirements applied to pre-enactment offenders by their own force, even without the additional rule by the Attorney General. The court concluded that Reynolds therefore had no stake in the rule and no standing to challenge it. (It is not clear if this case involves formal Article III standing, or “standing" in its more colloquial sense. But it doesn’t matter: either way, Reynolds has to show that he had some stake in the Attorney General’s rule.) This appeal followed....

[T]his case is not framed to present the more interesting constitutional issues around SORNA. The Court will almost surely limit its ruling to the precise standing issue here. Given all this, we might wonder why the Court even agreed to hear the case. It’s likely that the Court just needed to resolve a circuit split — a simple explanation for a surprisingly narrow case.

I share the view that Reynolds is a "surprisingly narrow case" — I am even inclined to call it annoying narrow given all the broader constitutional and statutory issues that surround SORNA. That said, I suspect today's oral argument and the ultimate ruling in Reynolds could provide some hints as to how various Justices view SORNA and its many notable "big federal government" elements.

SCOTUS back to work, with lots of crime (but not much punishment) on the docket

The buzz about the Supreme Court's new Term, which officially kicks off this morning, is that it could be one of the most consequential in recent memory. For example, this commentary via the National Review by Jonathan Adler is headlined "Supremely Consequential: The High Court begins a term that could be its most significant in decades," and How Appealing has lots and lots links to SCOTUS preview articles with the same theme.

This preview piece from Adam Liptak at the New York Times carries the headlined "In New Term, Supreme Court Shifts Focus to Crime and First Amendment," and here are passages explaining the crime part of the focus:

The Supreme Court, which has been focused in recent terms on the rights of corporations and on curbing big lawsuits, returns to the bench on Monday with a different agenda. Now, criminal justice is at the heart of the court’s docket, along with major cases on free speech and religious freedom....

[T]he justices will hear an extraordinary set of cases that together amount to a project that could overhaul almost every part of the criminal justice system. The court will decide whether the police need a warrant to use advanced technology to track suspects, whether jails may strip-search people arrested for even the most minor offenses, whether defendants have a right to competent lawyers to help them decide whether to plead guilty, when eyewitness evidence may be used at trial, and what should happen when prosecutors withhold evidence.

“The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end,” said Eric M. Freedman, a law professor at Hofstra University....

[T]he justices are focused on criminal cases, especially ones concerning the Fourth Amendment’s protections against unreasonable searches and the Sixth Amendment’s guarantee of a fair trial.

In United States v. Jones, No. 10-1259, the justices will consider whether the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time. Some appeals court judges have said that such surveillance put them in mind of George Orwell’s novel “1984.” Prosecutors say that electronic enhancement of the ability of the police to stake out and track suspects raises no constitutional concerns. A second Fourth Amendment case, Florence v. Board of Freeholders, No. 10-945, asks whether people arrested and held for minor offenses may be routinely strip-searched.

The court will also consider, in Maples v. Thomas, No. 10-63, whether a mix-up in the mailroom of a big New York law firm should mean that a death row inmate in Alabama must lose an opportunity to appeal a decision against him.

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

And the justices will return to a subject that sharply divided them in last term’s Connick v. Thompson case, which threw out a $14 million jury award to a former death row inmate who was cleared after prosecutorial withholding of evidence in New Orleans came to light. The new case, Smith v. Cain, No. 10-8145, also comes from New Orleans and concerns similar claims of prosecutorial misconduct.

For sentencing fans — who already know well that any new rulings about counsel and plea processes are far more important and consequential than any criminal trial doctrines — the Lafler and Frye cases are the big ones to watch going into this new Term.

That said, compared to some other recent Terms which started with obvious blockbusters (e.g., Graham in OT 2009, Plata in OT 2010), I am yet to see too much on the docket for sentencing fans to get worked up about. That could change, of course, with grants through the Term. And, as is often the case, there may be some sentencing sleepers lurking.

Why death is really LWOP in Connecticut: the "glacial pace" of state capital appeals

In the wake of a horrific murder of a family in their home, the Connecticut capital justice system has received attention as prosecutors have sought death sentences for the murderers. This legnthy new AP article highlights why, even with one death sentence imposed and another possible in the Cheshire mass murder case, condemned Connecticut murderers are much more likely to die in prison than to ever get executed by the state. The piece is headlined "Conn. Death Row Appeals Not Going Anywhere Soon," and here are excerpts:

As Connecticut prosecutors work to put Cheshire murder suspect Joshua Komisarjevsky on death row, the appeals of those already awaiting execution are moving at what legal experts say is a glacial pace. Of the 10 men sentenced to death in the state, three have been awaiting execution for more than two decades and two others have been on death row for at least 12 years....

Chief State's Attorney Kevin Kane recently told state lawmakers that death sentences "will not be carried out in the near future, given the current state of the legal proceedings. These oldest cases are not cases where the inmate will be exonerated through DNA technology. Guilt is not at issue; it is delay and delay solely for the sake of delay."

Judges, lawyers and victims' families blame foot-dragging by the courts and lawyers, the complexity of the appeal system and a six-year-old, still-pending lawsuit alleging racial and geographic bias in state death penalty cases. While death penalty opponents continue to call for a repeal of capital punishment, supporters are urging lawmakers to reform the appeal process.

None of Connecticut's death-row appeals have made it into the federal system, where they will go after the state appeals have been exhausted.

Superior Court Judge Carl Schuman issued rare criticism of the process from the bench in June, when he denied the latest appeal of convicted cop killer Richard Reynolds, who was convicted 16 years ago. He blamed prosecutors, defense attorneys and the courts for not moving the case forward and wrote that the "lethargic movement of this case is contrary to society's need for finality of convictions," adding that it "conflicts with all notions of sound judicial policy."...

Four death-row appeals are on hold because of the lawsuit alleging racial and geographic disparities, which is set to go to trial next June. The case, which will impact all death-row appeals, has been delayed for years by changes in judges, two different studies commissioned by the inmates' lawyers and a response from prosecutors that included several revisions.

Michael Courtney, head of the public defender office's Capital Defense Unit, said there could be more delays as his office moves have the date updated to include those sentenced to death after 2006. He said subsequent federal appeals could also be lengthy, as defense lawyers get their first chance to argue that Connecticut's death penalty violates the U.S. Constitution by pre-screening what issues a jury can consider as mitigating factors in a capital case.

"Until the U.S. Supreme Court ultimately decides we're going to look at this or we're not going to look at it, or decides one way or another whether Connecticut is operating properly under the federal Constitution, there is not going to be another execution in Connecticut, barring another volunteer" Courtney said. In 2005, serial killer Michael Ross was given a lethal injection after he pushed for his death sentence to be carried out, becoming the first person executed in New England since 1960.

The lack of executions can be attributed at least in part to a unique set of laws that allows for virtually unlimited numbers and types of appeals, prosecutors said. The direct appeal of a death sentence takes at least four years to litigate, they said. Defendants also can file what are known as habeas corpus appeals in state court alleging a variety of problems, such as the ineffective assistance of counsel, or improper testimony. If they lose their first habeas corpus appeal, they can file another, claiming problems in their first habeas corpus case, and so on.

October 2, 2011

The rhetoric surrounding the implementation of new prisoner rules in California is heating up, as evidenced by this local story headlined "As Prisoner Exchange Begins, LA County Officials Predict Doom." Here are excerpts:

Los Angeles County’s top prosecutor is predicting doom and gloom with a prospect of thousands of convicted felons being diverted to the county’s jail system rather than state prisons....

District Attorney Steve Cooley says with thousands of new, convicted felons coming into the jail system and 8,000 or more nonviolent felons being released early on parole; it’s a prescription for disaster. “I’m also predicting in connection with that population, we’re going to experience the greatest spike in crime of the last several decades,” Cooley said.

Only Deputy Chief Probation Officer Reaver Bingham, whose department will have to keep track of the thousands of new parolees, is hopeful that with increased funding and smaller caseloads, things might not turn out as bad as predicted. “If we do supervision correctly, we have seen the positive outcomes that we are projecting,” Bingham said.

On Saturday, the first group of 45 nonviolent felony inmates already serving time will gain early release and will be allowed to head home to LA. They’ll be the first of nearly 9,000 inmates who will also be released over the next nine months.

As criticisms of pot prohibition continues, new PBS documentary "Prohibition" is must-watch TV

I highly recommend everyone join me in setting the DVR to record the new PBS three-part documentary "Prohibition." In my town, this terrific-looking program begins airing tonight (Sunday, Oct. 2); I am hopeful that even those without TVs can find ways to watch the whole series via this official website. Here is a preview from that site:

PROHIBITION is a three-part, five-and-a-half-hour documentary film series directed by Ken Burns and Lynn Novick that tells the story of the rise, rule, and fall of the Eighteenth Amendment to the U.S. Constitution and the entire era it encompassed. The culmination of nearly a century of activism, Prohibition was intended to improve, even to ennoble, the lives of all Americans, to protect individuals, families, and society at large from the devastating effects of alcohol abuse.

But the enshrining of a faith-driven moral code in the Constitution paradoxically caused millions of Americans to rethink their definition of morality. Thugs became celebrities, responsible authority was rendered impotent. Social mores in place for a century were obliterated. Especially among the young, and most especially among young women, liquor consumption rocketed, propelling the rest of the culture with it: skirts shortened. Music heated up. America's Sweetheart morphed into The Vamp.

Prohibition turned law-abiding citizens into criminals, made a mockery of the justice system, caused illicit drinking to seem glamorous and fun, encouraged neighborhood gangs to become national crime syndicates, permitted government officials to bend and sometimes even break the law, and fostered cynicism and hypocrisy that corroded the social contract all across the country. With Prohibition in place, but ineffectively enforced, one observer noted, America had hardly freed itself from the scourge of alcohol abuse — instead, the "drys" had their law, while the "wets" had their liquor.

The story of Prohibition's rise and fall is a compelling saga that goes far beyond the oft-told tales of gangsters, rum runners, flappers, and speakeasies, to reveal a complicated and divided nation in the throes of momentous transformation. The film raises vital questions that are as relevant today as they were 100 years ago: about means and ends, individual rights and responsibilities, the proper role of government and finally, who is — and who is not — a real American.

I do not think one needs to be a committed critic of the modern war on drugs to be worried that, now in 2011, the enduring national prohibition on marijuana often "turn[s] law-abiding citizens into criminals, [makes] a mockery of the justice system, [causes] illicit [drug use] to seem [comical] and fun, encourage[s] neighborhood gangs to become national crime syndicates, permit[s] government officials to bend and sometimes even break the law, and foster[s] cynicism and hypocrisy."

I am rooting not only for this documentary to be a stark reminder of the failures of alcohol prohibition, but also for it to encourage new persons ask hard questions "about means and ends, individual rights and responsibilities, the proper role of government" and American virtues and values in conjunction with modern federal pot prohibtion.

"Can jail time slash crime by homeless?"

A controversial police program aimed at reducing crimes by homeless people has saved taxpayers money since it was launched this year, but it also has drawn pointed criticism that it violates due process rights and does little to curb quality-of-life offenses in the downtown area.

The program focuses on people like Richard Stewart, who last week completed a 20-day jail sentence. Stewart’s crime? He was found seeking shelter under the loading dock behind the downtown Sheraton during a thunderstorm, and arrested on charges of criminal trespassing and littering.

Stewart’s sentence was inflated because he has been labeled a chronic offender under the initiative created by Deputy Chief Damian Huggins, one of the police department’s rising stars.

During his time as the central precinct commander, Huggins noticed that a small group required a disproportionate amount of police resources. Huggins said he researched the issue and discovered that 46 individuals, virtually all of them homeless like Stewart, were responsible for 3 percent of all arrests in Davidson County last year. Huggins’ solution was to push for stricter jail sentences for those who were arrested 17 times or more in 2010.

A review of the new policy by The Tennessean found it has succeeded in reducing misdemeanor crimes but drawn the ire of defense attorneys and advocates who say the homeless are being targeted unfairly and sentenced too harshly for minor crimes.